Graham Adams on MACA and the Court of Appeal

Graham Adams writes:

The Court of Appeal itself found MACA “difficult and complex legislation”.

The court’s treatment of Section 58 of MACA is proving particularly contentious. It sets tests for customary marine title — including that the applicant group “holds the specified area in accordance with tikanga; and has, in relation to the specified area, exclusively used and occupied it from 1840 to the present day without substantial interruption”.

The majority judges decided that a literal reading of the second leg of the test — with its emphasis on exclusivity and continuity since 1840 — would be too onerous because it would mean virtually no claims could succeed. That outcome, it declared, would be “inconsistent with the Treaty/te Tiriti”.

Further, the majority judges effectively said they were choosing not to apply the plain words of Section 58 because it considered they were not consistent with the Act’s stated purposes.

In any event, the result of the attempts by judges in the High Court and Court of Appeal to square the circle between the actual words in the legislation in Section 58 and what they thought would make better and more consistent law is that we now have the novel concept of “shared exclusivity”. (This has prompted some observers to recall George Orwell’s quip: “There are some ideas so absurd that only an intellectual could believe them.”)

That strained notion is designed to solve the thorny problem arising from the overlaps among competing claims; in fact, six or more claimants per area is common. A reasonable person might quickly conclude that multiple credible claims over the same area would clearly breach the requirement in MACA for individual iwi and hapū to have used and occupied a territory exclusively for 184 years. However, our judges have somehow circumvented that obstacle.

That manoeuvre has been made possible in large part by the magic of tikanga. The courts have embraced the findings of pūkenga (specialists in Māori lore) to reconcile how several competing tribal groups sharing an area can plausibly pass the test for exclusivity. The fact tikanga is fluid and includes cultural values, customs, oral history and ancient legends — and varies from one tribal group to another — has provided a dimly lit path through that particular conundrum. Apparently, sharing can be part of tikanga and that trumps Western notions of property rights, as well as the obvious meaning of Section 58.

Effectively the Court of Appeal has over-ruled Parliament’s clear intent that customary title needed to be based on exclusive use, and has changed it to non-exclusive. This is a major change.

Those opposed to the courts’ expansive interpretation of MACA are pinning their hopes on Winston Peters obliging the judiciary to respect what Parliament actually said. NZ First’s coalition agreement with National, under the heading “Equal Citizenship”, promises the government will, in light of the Court of Appeal judgment, “amend Section 58 of the Marine and Coastal Area Act to make clear Parliament’s original intent…”

When the courts rewrite the law, it is the job of Parliament to change it back to its clear intent.